Petition for Writ of Certiorari — McClure v. Pennsylvania

Supreme Court, U.S.

FILED

991657 APR 7-929

uitit OF THE CLERK

In The

Supreme Court of the United States

EDGAR D. McCLURE,

Petitioner,

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

On Petition For Allocatur To The

Supreme Court Of Pennsylvania

¢

PETITION FOR A WRIT OF CERTIORARI

4

James R. HANKLE

(Counsel of Record)

SHERRARD, GERMAN & KELLY, P.C.

Attorneys at Law

35th Floor, One Oliver Plaza

Pittsburgh, Pennsylvania 15222-2602

(412) 355-0200

FAX: (412) 261-6221

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

ent ie

PROM iasacuacsincni inci Wb inn Ni ce Tate inet Psat

QUESTIONS PRESENTED

The Pennsylvania Rules of Evidence, as promulgated

by the Supreme Court of Pennsylvania, provide that an

adult defendant cannot be impeached on cross-examina-

tion for prior sexual conduct with another adult, except

by record of conviction.

Petitioner was convicted on several counts of child

molestation. Defense counsel at trial refused to put him

on the stand in his own defense on the grounds that he

would be subject to questioning by the prosecution

regarding a later sexual tryst with the mother of the

victims. Defense counsel relied on character witnesses

alone. New appellate counsel raised a claim of ineffective

assistance of trial counsel because evidence of the affair

with the mother was inadmissible under the Pennsylva-

nia Rules of Evidence. There was no reason not to allow

Petitioner to take the stand. After the appropriate rules of

evidence were raised in the trial court, the Superior Court

of Pennsylvania, and, finally, the Supreme Court of Penn-

sylvania, all refused to respond to the issue raised, as the

two appellate courts merely adopted the opinion below.

The questions presented are:

1. Whether Petitioner is entitled to a written opin-

ion by state appellate courts in order to satisfy

the Due Process Clause of the Fourteenth

Amendment and the Sixth Amendment’s right to

effective assistance of counsel;

il

QUESTIONS PRESENTED - Continued

Whether the use of summary dispositions of

appeals by state courts interferes with the ability

of the accused’s counsel to carry out an effective

appeal;

Whether state appellate courts should fall into

the same category as administrative and proba-

tion hearings that require written opinions in

support of decisions.

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....................000% i

Re Bes, , Se mer rye iii

TABLE OF AUTHORITIES .......................0- iv

PETITION FOR ALLOCATUR TO THE SUPREME

COURT OF PENNSYLVANIA................00-- 1

SY MEM viv ccadercowescbectvoasackveds 1

i ans td Sonn auda cst ¥dkocrciea ke 1

PENNSYLVANIA STATE RULES OF EVIDENCE.... 1

STATEMENT OF THE CASE.....................5. 3

REASONS FOR GRANTING THE PETITION ....... 5

THE CONVERGENCE OF THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT

AND THE RIGHT TO EFFECTIVE ASSISTANCE

OF COUNSEL PROVIDED BY THE SIXTH

AMENDMENT REQUIRE THE APPELLATE

COURTS OF THE COMMONWEALTH OF PENN-

SYLVANIA TO ISSUE REASONED OPINIONS IN

sures. OF THEIR RULINGS..........0.00008 5

A. By simply adopting the fragmented opinion of

the trial court without issuing supporting

opinions, the state appellate courts thereby

deprived the accused of his constitutional

right to have zealous and informed legal

oer rT ree rrr ree eee 5

B. State appellate courts should be held to the

same standards as administrative and proba-

tion hearings that require written opinions in

NN Wr MN iin da ay wiannd saws sade eas 10

Ts na ea kk sae eke aad kee wees ceeeS 12

I OD hs os are WKS WV ie a 4 kp 4. oa Sees App. 1

TABLE OF AUTHORITIES

CASES

Anders v. California, 386 U.S. 738 (1967) ............. 10

Anderson v. Harless, 459 U.S. 4 (1982)................. 6

Cerbo v. Fauver, 616 F.2d 714 (3rd Cir. 1980), cert.

rane, SEF Tie TR CR 2 ho x koa cde ee eh eek betenes 7

Commonwealth v. Townsell, 474 Pa. 563, 379 A.2d 98

Log) Pe eee ne ean e ee rrr here 7

Commonwealth v. King, 253 Pa. Super. 224, 384 A.2d

Se Cs kia is bua oe G ke es banda ese. rere 4

EUs @. Lomi, GOP WD. Dr CUP ocak se eee csannds 9

Geders v. United States, 425 U.S. 80 (1976)............ 8

Gideon v. Wainwright, 372 U.S. 335 (1963)............. 8

Goldberg v. Kelly, 397 U.S. 254 (1970) ................ 11

Gray v. Lynn, 6 F.3d 265 (Sth Cir. 1993) .............. 9

Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1

2 SNe mre eee ar IeP te Rat aoa ME hey gr tae Sue ae 11

Grijim &. Gitnein, 351 US. 12 CG) oc occ ccccccccnccas 9

Hannah v. Larche, 363 U.S. 420 (1960)................. 8

Harris v. Rivera, 454 U.S. 339 (1987).................. 7

Johnson v. Zerbst, 304 U.S. 458 (1938)..............--. s

Kimmel v. Morrow, 477 U.S. 365 (1986)................ 8

Matlovich v. Secretary of the Air Force, 591 F.2d 852

Seis Se EL 43 si eed ek eds bak eu ek Wk ea ae aes 10

Mayo v. Henderson, 13 F.2d 528 (2nd. Cir. 1994)....... 9

McMann v. Richardson, 397 U.S. 759 (1970)............ 8

Vv

TABLE OF AUTHORITIES - Continued

Page

Morrissey v. Brewer, 408 U.S. 471 (1972) ............. 11

Picard v. O'Connor, 404 U.S. 210 (1971)............... 6

Powell v. Alabama, 287 U.S. 45 (1932)........ ae ae 8

Prichard v. Lockhart, 990 F.2d 352 (8th Cir. 1993)...... 9

Strickland v. Washington, 466 U.S. 668 (1984).......... 7

Tuggle v. Netherland, 516 U.S. 10 (1995)............... 9

Wolff v. McDonnell, 418 U.S. 559 (1974).............. 11

OTHER AUTHORITIES

Martha I. Morgan, The Constitutional Right to Know

Why, 17 Harvard Civil Rights Civil Liberties

ee we ee ary ee ere 6

T. Emerson, Legal Foundations of the Right to Know

Why, 1976 Washington University Law Quar-

SR Bi do kana os 0 wns See ee ee 6

American Bar Association Standards Relating to

the Administration of Criminal Justice (3rd Ed.

POON «6 ik one's x REEL a KASS aEN bee eee ees Cae 9

STATUTES

ee RRs POE sc and ohne os edaaeeseuen likeaeia, 1

Ru.es OF EvIDENCE OF THE PENNSYLVANIA SUPREME COURT

Pennsylvania Rules of Evidence; Rules 608-609..... 1, 2

5

.

PETITION FOR ALLOCATUR FROM THE

SUPREME COURT OF PENNSYLVANIA

Petitioner respectfully requests that a Writ of Cer-

tiorari be issued to review the judgment of the Supreme

Court of Pennsylvania.

OPINIONS BELOW

The order of the Supreme Court of Pennsylvania is

reported at 2000 WL 36083 (PA) and reproduced in the

Appendix; the per curiam order of the Superior Court is

unreported and reproduced in the Appendix; the opinion

of the trial court is unreported and reproduced in the

Appendix.

JURISDICTION

Supreme Court of Pennsylvania entered its order on

January 13, 2000 (App., infra).

The jurisdiction of this Court is invoked under 28

U.S.C § 1257(a).

PENNSYLVANIA STATE RULES OF EVIDENCE

Pennsylvania Rules of Evidence, Rule 608. Evidence of

Character and Conduct of Witness

Rule 608 reads as follows:

(a) Reputation Evidence of Character. The credibility of

a witness may be attacked or supported by evidence

(b)

in the form of reputation as to character, but subject

to the following limitations:

(1) the evidence may refer only to character for

truthfulness or untruthfulness; and

(2) evidence of truthful character is admissible only

after the character of the witness for truthful-

ness has been attacked by reputation evidence

or otherwise.

Specific Instances of conduct. Except as provided in

Rule 609 (relating to evidence of conviction of

crime),

(1) the character of a witness for truthfulness may

not be attacked or supported by cross-examina-

tion or extrinsic evidence concerning specific

instances of the witness’ conduct; however,

(2) in the discretion of the court, the credibility of a

witness who testifies as to the reputation of

another witness for truthfulness or untruthful-

ness may be attacked by cross-examination con-

cerning specific instances of conduct (not

including arrests) of the other witness, if they

are probative of truthfulness or untruthfulness;

but extrinsic evidence thereof is not admissible.

Rule 609. Impeachment by Evidence of Conviction of

Crime

Rule 609 reads as follows:

(a)

General Rule. For the purpose of attacking the cred-

ibility of any witness, evidence that the witness has

been convicted of a crime, whether by verdict or by

plea of guilty or nolo contendere, shall be admitted

if it involved dishonesty or false statement.

& ———

|

STATEMENT OF THE CASE

On June 9, 1998, a three hour trial was held in the

Court of Common Pleas of Carbon County Pennsylvania,

and Edgar D. McClure (“Petitioner”) was found guilty by

a jury of five (5) counts of rape, five (5) counts of statu-

tory rape, four (4) counts of involuntary deviate sexual

intercourse, nineteen (19) counts of indecent assault, two

(2) counts of corruption of minors, and two (2) counts of

criminal conspiracy. Petitioner was sentenced to a prison

term of nineteen (19) to thirty-eight (38) years.

The facts at trial indicate that defense counsel failed

to put Petitioner on the stand in his own defense but

rather relied solely on character witnesses on behalf of

his client. The prosecution’s case consisted of the testi-

mony of the two female victims. In a post-sentence

motion and hearing, Petitioner was represented by new

counsel who argued, inter alia, ineffective assistance by

trial counsel for not affirmatively advising Petitioner to

testify in his own defense when Petitioner’s testimony

would have been exculpatory and not have exposed Peti-

tioner to impeachment regarding prior sexual conduct

with the mother of the victims.

The trial court rejected the citation of error on inef-

fectiveness of counsel by concluding that trial counsel

was justified in not calling on Petitioner to testify for two

reasons. First, Petitioner would have been subject to

cross-examination by revealing that he had visited the

house of the two girls. Secondly, the prosecution would

have been able to expose to the jury on cross-examination

that Petitioner had had a sexual liaison with the mother

of the girls on an occasion after the children had been

molested. Petitioner has argued that the perceived evi-

dence relating to the tryst with the mother was absolutely

barred by the Pennsylvania rules of evidence and, there-

fore, that trial counsel’s basic reason for not putting him

on the stand had no merit, since the testimony of the girls

had already established his presence in the home. Trial

counsel’s reasoning was fundamentally flawed.

The trial court’s opinion was silent on the issue of the

rules of evidence. In Petitioner’s post-trial appeal to the

Superior Court of Pennsylvania, the intermediate appel-

late court, the issue was raised with emphasis. That

Court, however, issued a ruling that “We . . . adopt the

trial court opinion in its entirety and affirm on that

basis.” Once again, the judiciary refused to address the

issue of the rules of evidence. An appeal was then taken

to the Supreme Court of Pennsylvania, which simply

refused to grant review. In sum, while Petitioner’s central

argument was raised at all levels, none of the courts

responded to the issue of what the appropriate rules of

evidence meant in their application to this case.

At all times in these appellate proceedings, Petitioner

has insisted that the failure of these courts to issue opin-

ions in support of their rulings violated the Due Process

Clauses of the Pennsylvania aad Federal Constitutions. In

specific terms, Petitioner alleges that it is Constitutional

error on the part of the Pennsylvania judiciary to refuse

to interpret the rules of evidence of the Pennsylvania

Supreme Court and thereby deprive appellate counsel of

the guidance and information needed to properly plan an

appellate strategy in defense of his client as provided by

the Sixth Amendment.

REASONS FOR GRANTING THE PETITION

I. THE CONVERGENCE OF THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT

AND THE RIGHT TO EFFECTIVE ASSISTANCE

OF COUNSEL PROVIDED BY THE SIXTH

AMENDMENT REQUIRE THE APPELLATE

COURTS OF THE COMMONWEALTH OF PENN-

SYLVANIA TO ISSUE REASONED OPINIONS IN

SUPPORT OF THEIR RULINGS.

A. By simply adopting the fragmented opinion of

the trial court without issuing supporting opin-

ions, the state appellate courts thereby deprived

the accused of his constitutional right to have

zealous and informed legal defense on appeal.

B. State appellate courts should be held to the

same standards as administrative and probation

hearings that require written opinions in sup-

port of decisions.

A.

By simply adopting the fragmented opinion of the trial

court without issuing supporting opinions, the state

appellate courts thereby deprived the accused of his

constitutional right to have zealous and informed legal

defense on appeal.

This appeal raises the important and novel question

of whether the provisions of the Due Process Clauses of

the Fourteenth and Sixth Amendments guarantee of

effective assistance of counsel converge in their require-

ments so as to mandate that state appellate courts issue

reasoned opinions to explain and justify their rulings. It

is intended here to provoke consideration of a problem

that arises when a convicted defendant and his new

appellate attorney appeal the verdict by requesting the

state courts to interpret the State Supreme Court’s own

rules of evidence, only to have these judicial bodies

remain silent, thereby failing to offer any reason by which

counsel could plan and execute an appeal. The result of

the refusal to issue opinions for their rulings forces appel-

late counsels to work in legal darkness and, in such a

context, to properly advise clients. The very judicial pro-

cess itself, in short, ironically creates a denial of effective

assistance of counsel.

In this case, the Federal claim of Due Process was

duly raised in the appeals to the Superior Court of Penn-

sylvania and the Supreme Court of Pennsylvania. Ander-

son v. Harless, 459 U.S. 4 (1982); Picard v. O’Connor, 404

U.S. 210 (1971).

Because this practice of failing to write opinions is

pervasive among the States and leads inexorably to simi-

lar results throughout the country, the instant issue meets

the criteria necessary to constitute a matter of grave legal

concern that demands Constitutional review.

The general issue has been characterized in academic

literature as “the constitutional right to know why.” Mar-

tha I. Morgan, The Constitutional Right to Know Why, 17

Harvard Civil Rights Civil Liberties Law Review 297

(1982). The literature covers a wide range of reasons for

state appellate courts to write opinions, including First

Amendment rights, sentencing, and the value of individ-

ualized human dignity, all of which fall within the param-

eters of the Due Process Clauses. See also: T. Emerson,

Legal Foundations of the Right to Know Why, 1976 Washing-

ton University Law Quarterly 1 (1976). At this point,

howewer, there has been no judicial reasoning on the

requirement of written opinions as related to the Sixth

Amendment.

While the concept of effective assistance is usually

limited to trial tactics, it is no less important to apply the

same standards to appellate representation where it is

well-settled that ineffectiveness will also lie. Cerbo v. Fau-

ver, 616 F.2d 714 (3rd Cir. 1980), cert. denied, 449 U.S. 858

(1980'); Commonwealth v. King, 253 Pa. Super. 224, 384 A.2d

1314 (1978); Commonwealth v. Townsell, 474 PA. 563, 379

A.2d 98 (1977) (addressing the necessity of developing a

strategy for appeals).

The landmark case of Strickland v. Washington, 466

U.S. 668, 685 (1984) held that the United States Constitu-

tion guarantees a fair trial based on the Due Process

Clause, and the basic elements of a fair trial are derived

from the Sixth Amendment’s Counsel Clause. Strickland’s

convergence of these two Constitutional principles

shoulld be extended to appellate procedures as well.

This raises again the agonizing problem of how coun-

sel is expected to provide adequate guidance to a client in

the absence of written reasons for appellate decisions.

While federal courts have no supervisory power over

state trial courts, the “work of appellate judges is facili-

tated when trial judges . . . explain controversial rulings”

in accordance with due process principles, even though

the occasion for explanations are “the exception rather

than the rule.” Harris v. Rivera, 454 U.S. 339 (1987). Where

there is a valid allegation that evidence would have been

barred from trial because of a state rule, thus demolishing

trial counsel’s reasoning in not putting Petitioner on the

stand, summary dispositions by the appellate courts must

be seen as providing one of those exceptions.

The right to counsel “is the right to effective assistance

of counsel,” McMann v. Richardson, 397 U.S. 759, 771, n. 14

(1970), and there should be no interference with the abil-

ity of counsel to make independent decisions about how

to conduct a defense. Geders v. United States, 425 U.S. 80

(1976). The defense process must, by necessity, include

the appellate process. Denial of effective counsel is a

direct violation of due process and the right to a fair trial.

Powell v. Alabama, 287 U.S. 45, 58 (1932); Johnson v. Zerbst,

304 U.S. 458 (1938); Gideon v. Wainwright, 372 U.S. 335

(1963). The same standard should apply to the appellate

process, for while it appears repugnant to our sense of

fair play to have a trial court deny defendant’s access to

information required for the preparation of a defense at

that level, it should be equally improper to deny appel-

lants critical information that is needed for the appellate

process. “Due process embodies the differing rules of fair

play.” Hannah v. Larche, 363 U.S. 420 (1960). A rejection of

the written appellate reasons requirement is inconsistent

with our constitutional plan of government at the trial

stage, and for identical reasons in the appeals process.

The failure of appellate courts to state in writing the

reasons for their decisions is one of the most pernicious

ingredients of judicial unfairness.

This Court’s own decisions regarding the right to

appellate due process have not yet indicated a finality on

the subject. In Kimmel v. Morrow, 477 U.S. 365, 383 (1986),

this court decided that relief on ineffective assistance

grounds will be afforded regardless of the “underlying

attorney error.” Indeed, for an appellant to have a fair

chance to present persuasive arguments, it is essential for

the appellate court to properly perform its function by

offering “each defendant a fair opportunity to obtain an,

adjudication on the merits of his appeal.” Evitts v. Lucey,

469 U.S. 387, 406 (1985) (the Due Process Clause puts

limitations on the State’s adjudication of the appellate

process in criminal cases); See also: Griffin v. Illinois, 351

U.S. 12 (1956).

Other federal courts that have addressed this issue

have invariably decided that a claim of ineffective assis-

tance may be based on counsel’s incompetent handling of

a state law issue. Mayo v. Henderson, 13 F.2d 528, 523 (2d

Cir. 1994); Gray v. Lynn, 6 F.3d 265 (5th Cir. 1993); Prichard

v. Lockhart, 990 F.2d 352 (8th Cir. 1993). In a more recent

holding, this Court has reversed and remanded a decision

of the Virginia Supreme Court on the grounds that evi-

dence before a jury should have been excluded as an

influencing factor, but that the Virginia courts failed to

inquire into the matter. Tuggle v. Netherland, 516 U.S. 10

(1995).

The American Bar Association Standards Relating to

the Administration of Criminal Justice (Third Ed. 1992)

provide in pertinent parts:

Standard 4-8.4 Conduct of Appeal

(a) Appellate counsel should be diligent in

perfecting appeals and expediting their

prompt submission to appellate courts.

Standard 4-8.5 Post-conviction Remedies

After a conviction is affirmed on appeal,

appellate counsel should determine whether

10

there is any ground for relief under other post-

conviction remedies. If there is a reasonable

prospect of a favorable result, counsel should

explain to the defendant the advantages and

disadvantages of taking such action. Appellate

counsel is not obligated to represent the defen-

dant in a post-conviction proceeding unless the

client has agreed to do so. In other respects, the

responsibility of a lawyer in a post-conviction

proceeding should be guided generally by the

standards governing the conduct of lawyers in

criminal cases.

It is imperative to ask how appeals can be perfected when

state appellate courts outright refuse to address valid

issues properly before them and thus eclipse a matter of

fundamental importance to an incarcerated defendant.

How, as required by law, can appellate counsel ade-

quately weigh whether to even take an appeal in the first

instance? Anders v. California, 386 U.S. 738 (1967). And

finally, what justice is there in having clients pay good

coin to appellate attorneys who are forced to make edu-

cated guesses in the face of a mute judicial system?

B.

State Appellate Courts should be held to the same stan-

dards as administrative and probation hearings that

require written opinions in support of decisions.

In the area of administrative law, federal courts have

generally required that decisions be based on formal find-

ings. A leading case, Matlovich v. Secretary of the Air Force,

591 F.2d 852 (D.C. Cir. 1978), held that a reasoned expla-

nation is designed “to inform the aggrieved person of the

grounds of the administrative action so he can plan his

11

course of action.” A person adversely affected by a deci-

sion, and their counsel as well, are thereby in a much

better position to determine the legitimacy of a holding.

Additionally, the reasoned explanation requirement

forces a disclosure of why a particular decision was

reached and in a cumulative sense leads to greater consis-

tency in the law. See also: Greenholtz v. Nebraska Penal

Inmates, 442 U.S. 1 (1979); Goldberg v. Kelly, 397 U.S. 254,

267 (1970) (procedural due process requiring a statement

of reasons to terminate welfare benefits is one of the

“minimum procedural safeguards” attaching to adminis-

trative proceedings).

This Court has held, as well, that a required state-

ment of reasons flows from the Due Process Clause to

parole revocation and probation proceedings and prison

disciplinary procedures. See, respectively, Morrissey v.

Brewer, 408 U.S. 471 (1972); Wolff v. McDonnell, 418 U.S.

559 (1974).

The marked trend in the case law of this Court,

therefore, is towards granting increased access to the

reasons behind judicial actions. While this impulse seems

strongest in administrative and parole and pardon cases,

the basic rationale must apply equally to state appellate

courts that should offer guidance to those defendants and

their attorneys in preparing a defense for one whose very

life hangs in the balance. An accused who is denied

effective assistance of counsel because of an infringement

of the Due Process Clause under these factual circum-

stances is effectively denied the opportunity to redress

any harm caused by state appellate courts.

¢

12

CONCLUSION

Linked together under the Bill of Rights, the Due

Process Clause and the Sixth Amendment’s guarantee of

effective assistance of counsel mandate that state appel-

late courts, when faced with a challenge to their own

rules, offer a written reason for their decisions. Other-

wise, there is no basis on which to assess the court's

actions, leaving a defendant in a “legal limbo” on appeal.

The present system by which state courts fail to explain

the reasons why an appeal is unsuccessful violates a

defendant’s constitutional right to effective assistance of

counsel.

Petitioner respectfully requests that this Petition be

granted so that he can pursue a knowledgeable and

informed course of appeals in the state courts.

Respectfully submitted,

James R. HANKLE, EsQuire

Attorney for Petitioner

SHERRARD, GERMAN & KELLY, P.C.

Attorneys at Law

35th Floor, One Oliver Plaza

Pittsburgh, Pennsylvania 15222-2602

(412) 355-0200

FAX: (412) 261-6221

App. 1

APPENDIX A

IN THE COURT OF COMMON PLEAS OF

CARBON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF

PENNSYLVANIA

No. 260 CR 96

VS.

EDGAR D. McCLURE,

Defendant

David W. Addy, Esquire Counsel for Commonwealth

Assistant District Attorney

James R. Hankle, Esquire Counsel for Defendant

OPINION AND ORDER

Webb, J. - November 20, 1998

Edgar D. McClure has filed Post-Sentence Motions to

the judgments of sentence imposed for various sexual

offenses committed against two minor girls.

FACTS

The facts, when viewed most favorably to the Com-

monwealth as verdict winner, begin with the dysfunction

of the family of the victims, Melissa and Jennifer, born on

November 28, 1979 and October 28, 1985, respectively.

The girls have never been married, and are two of twelve

children born to parents Brian and Susan O'Neill. N.T.

6/9/98 at 17-18, 31, 47 & 55. The dysfunction began with

App. 2

Brian subjecting Susan and the children to physical

abuse, id. at 19-21 & 48-49, and escalated to his use of

threats and beatings to force Melissa and Jennifer to

engage in sexual acts with him and other men. Id. at 19-30

& 49-55. Neither girl understood the nature or wrongful-

ness of the sexual behavior, but submitted because they

feared their father. Id. at 26-30 & 54-55.

This pattern of abuse continued after the family

moved to Carbon County in 1987, id. at 18, where the

father allowed McClure to sexually molest Melissa

approximately once every month or every other month

during 1990 through 1992. The father would send Melissa

to his bedroom with McClure to “play house,” his euphe-

mism for sex, and peek through or listen at the door,

while McClure engaged in vaginal and oral sex with

Melissa. Id. at 24-33. During this time period, McClure

was in his fifties, Id. at 62, while Melissa was only 10 to 12

years old.

Eventually, the sexual molestation extended to Jen-

nifer, who was subjected to vaginal intercourse with

McClure approximately once or twice a month during

1991 through 1992. Id. at 50-55. When Jennifer was only 5

and 6 years old, the father would take her to his bedroom

with McClure, order her to undress, and watch as

McClure engaged in vaginal intercourse.

Despite the multiple occurrences in each year,

McClure was charged with only one count of the various

crimes per year in regard to each girl. The jury found

Defendant guilty of all charges submitted to it. Speci-

fically, for the sexual abuse of Jennifer, McClure was

App. 3 -

convicted of rape!, statutory rape?, indecent assault, cor-

ruption of minors*, and conspiracy. As to Melissa, the

convictions included these crimes as well as involuntary

deviate sexual intercourse (IDSI)°. Timely Post-Sentence

Motions were then filed.

1 The amended 1984 rape statute was in effect during the

incidents in question and provided, inter alia, that a person

commits rape when he engages in sexual intercourse with

another person not his spouse, who is so mentally deficient that

such person is incapable oi consent. 18 Pa.C.S.A. § 3101 &

§ 3121(4).

2 A person who is 18 years of age or older commits

statutory rape, a felony of the second degree, when he engages

in sexual intercourse with another person not his spouse who is

less than 14 years of age. 18 Pa.C.S.A. § 3101 & § 3122 (1976).

3 A person who has indecent contact with another not his

spouse, or causes the complainant to have indecent contact with

him, is guilty of indecent assault, . . . if (1) he does so without the

consent of the other person; (2) he knows that the other person

suffers from a mental defect which renders her incapable of

appraising the nature of her conduct; (3) he knows that the other

person is unaware that a (sic) indecent contact is being

committed; or (6) he is over 18 years of age and the other person

is under 14 years of age. 18 Pa.C.S.A. § 3126(1) (2) & (3) (1976);

18 Pa.C.S.A. § 3126(6) (effective 4/3/90).

4 Whoever, being of the age of 18 years and upwards, by

any act corrupts or tends to corrupt the morals of any minor less

than 18 years of age, . . . is guilty of a misdemeanor of the first

degree. 18 Pa.C.S.A. § 6301 (1978).

> A person commits a felony of the first degree when he

engages in deviate sexual intercourse with another person: (4)

who is so mentally . . . deficient that such person is incapable of

consent; or (5) who is less than 16 years of age. 18 Pa.C.S.A.

§ 3101 & § 3123(4)(5) (1973).

App. 4

DISCUSSION

Defendant raises the issues of the sufficiency of the

evidence, the weight of the evidence, prosecutorial mis-

conduct and the ineffectiveness of his trial attorneys.

SUFFICIENCY OF EVIDENCE

Defendant challenges the sufficiency of the evidence

to support his convictions for conspiracy and all of the

sex offenses. The standard for reviewing the sufficiency

of the evidence is whether the evidence admitted at trial

and all reasonable inferences drawn therefrom, when

viewed in the light most favorable to the Commonwealth

as verdict winner, is sufficient to support all elements of

the offenses beyond a reasonable doubt. Commonwealth v.

Miller, 664 A.2d 1310, 1314 (Pa. 1995), cert. denied, __ US.

__, 116 S.Ct. 932, 133 L.E.2d 859. In sex offense prosecu-

tions, the testimony of the victim, standing alone, is suffi-

cient to convict. Commonwealth v. Kunkle, 623 A.2d 336

(Pa.Super. 1993), alloc. denied, 637 A.2d 281 (Pa. 1993).

Here, the testimony of both victims amply supported

Defendant’s convictions. Melissa attested to vaginal and

oral intercourse during 1990 through 1992, supporting the

convictions for rape and IDSI, respectively. For Jennifer,

her testimony of vaginal intercourse supported the rape

convictions for the years 1991 and 1992. The indecent

assaults and corruption of minors are sustained by any of

the sexual contacts.

App. 5

LACK OF SPECIFIC DATES

Nonetheless, Defendant argues that the Common-

wealth did not establish with any degree of specificity

particular dates on which the sexual acts occurred. While

the Commonwealth must establish to a reasonable degree

of certainty the approximate date of the offense charged it

need not always prove a single specific date of the crime.

Commonwealth v. Robinson, 462 A.2d 840, 842 (Pa. Super.

1983), quoting, Commonwealth v. Devlin, 333 A.2d 888, 899

(Pa. 1975). Accord: Commonwealth v. Niemetz, 422 A.2d

1369 (Pa.Super. 1980).

[T]he rule has been somewhat relaxed when the

victim is a child . . . When a young child is a

victim of a crime, it is often impossible to ascer-

tain the exact date when the crime occurred. He

or she may have a vague sense of the days of the

week, the months of the year, and the year itself.

If such children are to be protected, imprecision

concerning times and dates must be tolerated.

Commonwealth v. Luktisch, 680 A.2d 877, 880 (Pa.Super.

1996) (citations omitted). Any leeway permissible would

vary with the nature of the crime and the age and condi-

tion of the victim, balanced against the rights of the

accused. Niemetz, 333 A.2d at 892 (footnote and citations

omitted).

Here, the facts are analogous to Niemetz and its prog-

eny. The crimes occurred repeatedly against very young

girls over a two or three year period, as opposed to an

isolated incident. Thus, they were not susceptible to

being dated with a reasonable degree of certainty. Com-

monwealth v. McClucas, 516 A.2d 68 (Pa.Super. 1986).

App. 6

Despite minor inconsistencies in their recollection,

the girls recounted graphic details of the abuse. The jury

heard and observed the girls as they testified, and the

credibility of the witnesses and the weight to be accorded

the evidence produced are matters within their province.

Commonwealth v. Perez, 698 A.2d 640, 645 (Pa.Super. 1997)

(citations omitted). Based on their testimony, the jury

could reasonably believe that the girls were subjected to

repeated sexual abuse and find at least one occurrence

during each of the relevant years.

CONSPIRACY

In regard to conspiracy, McClure argues there was

insufficient evidence to prove an agreement between

himself and the father to commit the sex crimes. In order

to convict a defendant of a conspiracy, a fact finder must

conclude that he reached an agreement with his co-con-

spirator to commit the crime. 18 Pa.C.S.A. 903(a)(1); Com-

monwealth v. Anderson, 552 A.2d 1064, 1071 (Pa.Super.

1988), alloc. denied, 571 A.2d 379 (Pa. 1989) (citations

omitted). The existence of a common agreement between

co-conspirators, may be inferred from circumstantial evi-

dence surrounding the allegedly conspiratorial activities,

and from the relationship between and the conduct of the

parties. Id.

In the instant case, an agreement can be inferred from

the manner in which the crimes occurred. The father sent

McClure upstairs to his bedroom with one girl at a time.

The girl was then instructed to undress and “play house,”

which she understood to mean submitting to the various

sexual acts. The father would remain in the room, or peek

App. 7

through or listen at the door, while McClure actually

completed the sexual crimes underlying the conspiracy.

Based on this coordinated conduct, the friendship of the

co-conspirators, and the duration of the abuse, the jury

could infer the requisite agreement for conspiracy.

WEIGHT OF THE EVIDENCE

The Superior Court has explained the proper stan-

dard of review applicable to a challenge to the weight of

evidence:

A true “weight of the evidence” claim contends

the verdict is a product of speculation or conjec-

ture. Such a claim requires a new trial only

when the verdict is so contrary to the evidence

as to shock one’s sense of justice. A decision

regarding the weight of the evidence is within

the sound discretion of the trial judge whose

decision will not be reversed on appeal absent

an abuse of that discretion.

Commonwealth v. Dougherty, 679 A.2d 779, 785 (Pa.Super.

1996). A review of the record in this case reveals that the

verdict was not against the weight of the evidence.

PROSECUTORIAL MISCONDUCT

Defendant next accuses the prosecution of miscon-

duct arising from several statements made at trial. Gener-

ally, comments by a prosecutor do not constitute

reversible error unless the unavoidable effect of such

comments would be to prejudice the jury, forming in their

minds fixed bias and hostility toward the defendant so

that they could not weigh the evidence objectively and

App. 8

render a true verdict. Commonwealth v. Morales, 701 A.2d

516, 527-528 (Pa. 1997). Prosecutorial misconduct will not

be found where comments were based on the evidence or

proper inferences therefrom or were only oratorical flair.

Id. at 528. Moreover, in order to evaluate whether the

comments were improper, the court must look at the

context in which they were made. Id.

In opening argument, McClure contends the Com-

monwealth impermissibly expressed an opinion of his

guilt by stating: “My words can’t do what they endured

justice.” N.T. 6/9/98 at 9. This portion of opening argu-

ment shows the prosecution was merely introducing the

victims and preparing the jury for the graphic nature of

the testimony they were about to hear. To cast this state-

ment as other than oratorical flair is to contort its context

and substance.

In regard to closing argument, Defendant highlights

four instances of alleged prosecutorial misconduct. In the

first one, Defendant claims the jury was misled about a

police report. However, the prosecutor never mentioned a

police report when closing. The statement cited by Defen-

dant is, instead, from the defense’s closing argument.

N.T. 6/9/98 at 95-96.

Secondly, Defendant claims the prosecutor misstated

the law of conspiracy:

First, criminal conspiracy; acting in accordance

with another — specifically Brian James O'Neill,

the father — with the intent to achieve a criminal

result. Conspirators don’t have to have a written

contract. They just have to act together to form a

result.

App. 9

N.T. 6/9/98 at 102. Read as a whole, the Court can see no

€rror in this statement. A conspiracy can be inferred from

the acts of the conspirators done in furtherance of the

Criminal aim. See discussion supra. Moreover, the Court

Provided a full and proper charge on the elements of

Conspiracy. N.T. 6/9/98 at 135-139. Therefore, no preju-

dice inured to Defendant.

The third statement from closing argument arises

from the prosecutor calling Defendant’s co-conspirator

“ dirt”:

Ladies and gentleman, I also don’t want you to

be put off by the number of witnesses. Although

there are no corroborating witnesses, ladies and

gentleman, the testimony is very clear that Mr.

McClure came to Palmerton. The testimony is

equally clear that he went up to Dad’s bedroom

and had his way from each one of them. Who

else in that bedroom would I submit to you?

Who would I have to give you in that bedroom? Mr.

McClure, who, as Mr. Garfield has pointed out, has

chosen not to testify and stand on that? Brian

O'Neill? I wouldn't put that dirt on the stand in

front of you.

N.T. 6/9/98 at 112 (emphasis added). A review of the

transcript reveals the prosecutor merely mirrored the

€xact language used by the defense in its closing argu-

Tent. Id. at 92. The prosecutor is entitled to fairly

Tespond to closing remarks made by defense counsel.

Commonwealth v. Hawkins, 701 A.2d 492 (Pa. 1997), cert.

denied, ___ U.S. __, 118 S.Ct. 1535, 140 L.E.2d 685. Where

both sides used the same oratical flair, the Court cannot

fathom how this amounts to prosecutorial misconduct.

App. 10

Defendant’s final challenge is also derived from the

above text and focuses on the reference to Defendant's

choice not to testify. This passing statement did not imply

Defendant was guilty based on his unwillingness to tes-

tify, and thus, did not violate his constitutional right

against self-incrimination. Commonwealth v. Kelly, 528

A.2d 1346 (Pa.Super. 1987), alloc. denied, 535 A.2d 1057

(Pa. 1987).

Rather, the remarks were proper rebuttal to the argu-

ments of defense counsel. During closing argument, the

defense focussed on Defendant’s decision to not testify,

the victim’s lack of credibility and the limited amount of

testimony presented by the prosecution. The prosecuting

attorney properly responded by referring to the fact that

the dirth of eyewitnesses in the bedroom was due to the

hidden nature of sexual abuse.

Additionally, this Court properly instructed the jury

on Defendant’s absolute right to not take the stand, from

which the jury could draw no inference of guilt.

N.T.6/9/98 at 133. The Court further advised them that

Defendant is presumed innocent and need not present

any evidence, because the burden of proof is on the

prosecution to prove each and every element of the

offenses. Id. at 118-119 and 133. Therefore, any prejudice

to Defendant was mitigated by these instructions.

INEFFECTIVENESS OF TRIAL COUNSEL

The standard of review when evaluating a claim of

ineffectiveness of counsel is well settled. It is presumed

that trial counsel is effective and defendant has the bur-

den of proving otherwise. Commonwealth v. Lewis, 708

App. 11

A.2d 497 (Pa.Super. 1998), alloc. denied, __ A.2d ___ (Pa.

1998) (citations omitted). The first determination is

whether the issue underlying the claim is of arguable

merit. Id. If the claim is without merit, then the inquiry

ends because counsel will not be deemed ineffective for

failing to pursue an issue without basis. Id. Even if the

underlying claim has merit, the defendant must establish

that the course of action chosen by counsel had no rea-

sonable basis designed to effectuate the client’s interests

and, finally, that the ineffectiveness prejudiced his right

to a fair trial. Id.

On October 19, 1998, a hearing was held on the issue

of the trial attorneys’ effectiveness. Although the Court

has not set forth separate findings of fact and conclusions

of law, we believe that this portion of the discussion

clearly enunciates the facts adduced from the hearing and

the legal conclusions derived therefrom.

Defendant first claims the defense team was ineffec-

tive by pursuing a character defense, instead of an alibi.

At the hearing, the trial attorneys, Michael Garfield and

Robert Yurchak, testified credibly to discussing the possi-

ble defenses with McClure. Ultimately, a character

defense was chosen, which would present McClure as an

honest family man based on his lack of a criminal record,

his good reputation in the community and his consistent

denial of the charges.

In addition, the defense attorneys had rejected an

alibi defense, because McClure admitted to being present

in the victims’ home during the years in question,

although he denied committing the crimes. Therefore, the

real issue was not whether Defendant was somewhere

App. 12

else when the crimes occurred, see Commonwealth v.

Kolenda, 676 A.2d 1187 (Pa. 1996), but whether the jury

would believe the victim’s version of events. The defense

strategy of emphasizing Defendant’s good character,

inferring it was unlikely that he committed any of the

offenses, was thus a reasonable one.

When presenting this defense at trial, Defendant

asserts that more than four character witnesses should

have been called to testify. The defense informed the

Court and the jury that there were many character wit-

nesses in the courtroom willing to testify. However, the

Court limited the presentation, because it would be

cumulative. N.T. 6/9/98 at 81. These four character wit-

nesses lived near McClure, and included an ex-police

officer/ex-Marine and three co-workers from the com-

pany where Defendant had worked for many years. The

Court properly instructed the jury that the testimony of

the character witnesses alone could raise a reasonable

doubt and justify a verdict of not guilty. N.T. 6/9/98 at

133-134. Therefore, the presentation of the character

defense was more than adequate and did not constitute

ineffectiveness of counsel.

McClure next states that his work schedule should

have been offered into evidence to disprove the alleged

frequency of the crimes. However, his attorneys found

many time gaps in it, including weekends and vacations,

which were consistent with the girls’ account. Thus, the

work schedule was of limited evidentiary value, if not

harmful to the defense.

Related to this issue is trial counsels’ alleged ineffec-

tiveness for failing to call certain witnesses. In order to

App. 13

establish that trial counsel was ineffective for failing to

call witnesses, a petitioner must:

(1) identify the witness or witnesses;

(2) demonstrate that counsel actually

knew, or had a duty to know, the identity of the

witness or witnesses prior to trial;

{3) demonstrate that the witnesses or wit-

nesses were ready, willing and able to testify for

the defense at trial; and

(4) demonstrate that the proposed testi-

mony would have been helpful to the defense

asserted at trial.

Commonwealth v. Schultz, 707 A.2d 513, 519 (Pa.Super.

1997).

First, McClure claims his wife should have been

called to fill in the gaps in his work schedule. However,

the wife could not account for much of the time, because

her husband often spent weekends alone in Easton, Penn-

sylvania, approximately an hour from the scene of the

crime.

In addition, Defendant asserts his wife should have

been called as a character witness and to recount that no

abuse occurred when they twice visited the victims’ home

together. Defendant's exercise of self-control in his wife’s

presence was of limited value in showing no abuse dur-

ing the visits when she was not there. Her worth as a

character witness was also compromised by her natural

bias as Defendant's spouse. Thus, the relevance and help-

fulness of the wife’s testimony is questionable, and no

ineffectiveness can attach in not calling her.

App. 14

Defendant next argues his trial attorneys were inef-

fective in failing to call him to testify at trial. The decision

whether to testify is ultimately to be made by the accused

after consultation with counsel. Commonwealth v. Whitney,

708 A.2d 471 (Pa. 1998). Trial counsel is not ineffective

where the decision to not call defendant was reasonable.

Id.

At the hearing on the Post-Sentence Motion, McClure

admitted to discussing the pros and cons of testifying at

trial with his attorneys. Although testifying would have

allowed him to deny the accusations directly to the jury, it

would have opened the chosen defense to attack. Speci-

fically, Mcclure could have been cross-examined about his

admissions to the police of a sexual relationship with the

victims’ mother, who was also the purported common

law wife of his friend and co-conspirator. This evidence

would have contradicted McClure’s claim of good charac-

ter for chastity and respect for family values.

In addition, testifying could have drawn attention to

McClure’s repeated visits to the victims’ home. This

would have given rise to contemplation as to why he

continued a relationship with the father, even visiting

him in prison while standing accused in the present case.

Therefore, it was reasonable to not call McClure to the

stand based on his relationship with the victims’ family,

the character defense, and the decision being left to

McClure after full discussion with his trial attorneys.

Further, as discussed supra, the Court advised the jury

that no inference of guilt could be drawn from Defen-

dant’s decision to not testify. N.T. 6/9/98 at 133.

App. 15

McClure also asserts the defense should have called

Pat Lennox, Crystal Mervin and his step-daughter to

testify at trial. Not only did Defendant fail to demon-

strate their willingness and availability to testify, he

merely posits questions or theorizes about what they

might have stated. Without knowing the content of their

proposed testimony, this Court cannot determine its rele-

vance and value to the case.

Similar to this claim, Defendant argues that the

defense should have investigated his case more thor-

oughly, but points to no evidence of an exculpatory or

helpful nature, which would have been found. Accord-

ingly, since both claims are based on pure conjecture, the

Court can find no merit in them.

In his next allegation of ineffectiveness, McClure

states the defense’s closing argument failed to properly

survey or attack the evidence. In closing argument, Attor-

ney Garfield argued against the credibility of the victims.

He also highlighted the role of Defendant’s good charac-

ter and the Commonwealth’s burden of proving the

charges beyond a reasonable doubt. N.T. 6/9/98 at

88-101. Since these were the key issues, the content of

closing argument was reasonable, even if brief.

The final issue is the allegation of counsels’ ineffec-

tiveness in failing to properly respond to adverse pretrial

publicity. Specifically, McClure asserts the defense should

have: 1) questioned the potential jurors about the adverse

impact of any pretrial publicity; and 2) filed a motion to

change venue and venire.

First, McClure’s attorneys did, in fact, ask the jury

pool whether they had heard or read about the case in the

App. 16

newspaper, radio or television. N.T. 6/8/98 at 20. Only

one juror responded affirmatively and he, ultimately, was

not selected for the jury. Id. at 20-21 & 31-32. The Court

further advised the selected jurors to avoid learning of

the case from the media, since they must decide the case

solely on the evidence presented in court. N.T. 6/8/98 at

32.

Secondly, there was no actual prejudice preventing

the impaneling of an impartial jury, because only one

potential juror had even heard of the case, and he was not

chosen. Commonwealth v. Ricci, 670 A.2d 1129, 1140 (Pa.

1996), cert. denied, __ U.S. __, 117 S.Ct. 1257, 137 L.E.2d

[sic] 337. Also, McClure failed to present any evidence of

pretrial publicity, let alone sensational, inflammatory, or

slanted coverage. Thus this issue also lacks arguable

merit.

Accordingly, we enter the following

ORDER OF COURT

AND NOW, this 20th day of November, 1998, upon

consideration of Defendant’s Original and Supplemental

Post-Sentence Motions, the submissions of the parties,

and after argument held, it is hereby

ORDERED and DECREED that the Motions are

DENIED.

BY THE COURT:

/s/ R. Webb

Db Bian OER

App. 17

NOTICE OF RIGHTS

The following notice is provided to advise the Defendant:

i

Of the right to appeal to the Pennsylvania Superior

Court from the judgment of sentence and such appeal

must be filed within 30 days from the entry of this

order disposing of Defendant’s Post-Sentence

Motions, Pa.R.A.P. Rules 108 & 903;

Of the right to raise any issue properly preserved in

the record below, whether or not included in the Post-

Sentence Motions unless otherwise provided by law;

Of the right to assistance of legal counsel in the

preparation of the appeal;

Of the rights to proceed informa pauperis and to have

an attorney appointed to assist in preparation of the

appeal, if the Defendant is indigent; and

That the right to bail after sentencing, when the sen-

tence imposed includes imprisonment of 2 years or

more, is within the discretion of the judge. Pa.R.Cr.P.

Rule 4009(B) (1).

App. 18

APPENDIX B

COMMONWEALTH OF : IN THE SUPERIOR

PENNSYLVANIA, - COURT OF

A : PENNSYLVANIA

ppellee

V. .

EDGAR D. McCLURE, : No. 38 EDA 1999

Appellant ;

Appeal from the Judgment of Sentence, July 17, 1998,

In the Court of Common Pleas of Carbon County,

Criminal, No. 260 CR 96

BEFORE: CAVANAUGH, JOYCE, and OLSZEWSKI, JJ.

MEMORANDUM:

FILLED AUG 2 1999

This matter is before the Court on Edgar D.

McClure’s (Appellant) appeal from the judgment of sen-

tence of the trial court, as made final by the denial of

post-sentencing motions.’ For the following reasons, we

affirm. The tragic facts of this case were accurately set

forth by the trial court:

1 See Commonwealth v. Chamberlain 658 A.2d 395, 397 (Pa.

Super. 1995), appeal quashed, 543 Pa. 6, 669 A.2d 877 (1995) and

Pa.R.Crim.P. 1410 and comment thereto (providing that

judgment of sentence becomes final for purposes of appeal

when the trial court disposes of defendant’s post-sentencing

motion).

nani

App. 19

The facts . . . begin with the dysfunction of the

family of the victims, [M.O.]? and [J.O.], born on

November 28, 1979 and October 28, 1985,

respectively. The girls have never been married,

and are two of the twelve children born to par-

ents Brian and Susan O’Neill. N.T. 6/9/98 at

17-18, 31, 47 & 55. The dysfunction began with

Brian subjecting Susan and the Children to

physical abuse, id. at 19-21 & 48-49, and esca-

lated to his use of threats and beatings to force

[M.O.] and [J.O.] to engage in sexual acts with

him and with other men. Id. at 19-30 & 49-55.

Neither girl understood the nature or wrongful-

ness of the sexual

+ * *

—_

On July 17, 1998, the trial judged sentenced Appellant to

an aggregate sentence of nineteen (19) to thirty-eight (38)

years. Appellant filed post-sentence motions. Following a

hearing, the trial judge denied Appellant’s post-sentence

motions. This timely appeal followed.

Appellant presents the following issues for our con-

sideration: (1) whether the verdict finding Appellant

guilty of conspiracy was against the weight and suffi-

ciency of the evidence; (2) whether the trial court erred in

failing to find prosecutorial misconduct; and (3) whether

the trial court erred in failing to find ineffectiveness of

counsel.

In this case, we have thoroughly reviewed the record

and studied the briefs. We conclude that the trial court’s

November 20, 1998 opinion carefully and correctly

2 We will identify the victims by using their initials for

purposes of confidentiality.

App. 20

responds to the issues Appellant has raised. We therefore

adopt the trial court opinion in its entirety and affirm on

that basis. See Trial Court Opinion, 11/20/98.

Judgment of sentence affirmed.

App. 21

COMMONWEALTH OF : IN THE SUPERIOR

PENNSYLVANIA, - COURT OF

a : PENNSYLVANIA

ppellee

V.

Gk D. watts, CO ee

Appellant

Appeal from the Judgment of Sentence, July 17, 1998,

In the Court of Common Pleas of Carbon County,

Criminal, No. 260 CR 96

BEFORE: CAVANAUGH, JOYCE, and OLSZEWSKI, JJ.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment of the

Court of Common Pleas of CARBON County be, and the same

is hereby AFFIRMED.

BY THE COURT:

/s/ David A. Szewczak

PROTHONOTARY

Dated: AUGUST 2, 1999

App. 22

APPENDIX C

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF : No. 866 M.D. Allocatur

PENNSYLVANIA, : Docket 1999

Respondent , Petition for Allowance of

" ' Appeal from the Superior

Court

EDGAR D. McCLURE,

Petitioner

ORDER

(Filed Jan. 14, 2000)

PER CURIAM:

AND NOW, this 13th day of January 2000, the peti-

tion for allowance of appeal is denied.